Connolly v. Canada Post Corp., 2002 FCT 398

Date: 20020410

Docket: T-2093-99

Neutral citation: 2002 FCT 398

OTTAWA, Ontario, this 10^th day of April, 2002.

BEFORE: The Honourable Mr. Justice MacKay

BETWEEN:

        JOHN E. CONNOLLY

      Applicant

                 and

      CANADA POST CORPORATION

Respondent

    REASONS FOR ORDER AND ORDER

MacKAY J.

[1]                 By Order dated February 20, 2002 I dismissed Mr. Connolly's application for judicial review of, and an order setting aside, a decision by the Canadian Human Rights Commission dated April 16, 1999, whereby his complaint against his former employer, the respondent Canada Post Corporation, was dismissed, without being referred to a tribunal for a hearing. The Order of February 20, 2002 also provided, in regard to the matter of costs:

Costs are awarded to the respondent, in a fixed amount as the parties may agree upon, and failing agreement as the Court may determine after consideration of any written submissions the parties may make to the Registry of the Court on or before March 22, 2002.

[2]                 At the hearing both parties asked for costs. Following the decision and the Order in February 2002, the parties did not agree on costs. Canada Post Corporation made no written submissions within the time specified, and the applicant, Mr. Connolly, made written submissions, including 38 numbered grounds, referred to by him as reasons, why costs should not be awarded to the respondent Canada Post Corporation.

[3]                 Of the numerous "reasons" set out in Mr. Connolly's submissions, few are relevant to the issues ordinarily considered as a basis for costs from a legal proceeding. I summarize my comments about these matters as follows.

(a)             Subparagraphs 1) to 7), under the heading "Monetary Restrictions" relate to the applicant's personal financial circumstances including the termination of long term disability insurance benefits in March 2000, his continuing chronic pain and disability, and his acknowledgment of a recent surprise deposit of money to his bank account by Canada Post, providing financial relief for which he expresses appreciation;

(b)             Subparagraphs 8) to 13), under the heading "The Litigation", relate to his difficulties, as a self-represented litigant, without legal training, with no resources to retain counsel, and without legal aid, and his difficulties in preparing and assembling documents for his application for judicial review, his difficulty in appreciating the Court's rules and his consequent need to seek judicial guidance by interlocutory applications, and the inequality of resources available for him as compared with those of Canada Post;

(c)             Subparagraphs 14) to 19), under the heading "The Issue of Costs" deal with distinct matters. Number 14), which states "The issue of costs are (sic) not mentioned in the Federal Court rules", is clearly in error: see 1998 Rules 400 to 418.

Subparagraph 15) refers to the issue of costs as mentioned on Canada Post's website, which is irrelevant to the determination this Court must make.

Subparagraphs 16) to 19) urge that costs should not be awarded to the respondent Canada Post since the applicant had provided opportunities for Canada Post to respond effectively to his concerns arising from his injuries, but the Corporation had done nothing so that, though he was "extremely unwilling to be subjected to this litigation", he had no alternative but to proceed to seek judicial review. He had sought unsuccessfully for a representative of the Commission to attend the hearing, and the award of costs to Canada Post is, in his view, unwarranted. Moreover, he submits that his complaint the Commission, and his evidence, warranted a hearing, but it was not heard for reasons not specified by the Commission. In the circumstances, he submits that costs should not be awarded to Canada Post.

(d)             Subparagraphs 20) to 38) follow under the heading "The Decision to Dismiss My Application".

Some subparagraphs fail to appreciate the process of judicial review. For example, the perceived delay by the respondent failing to agree to early accommodation of the applicant's concern, the perception that Canada Post does not need the money that would result from an award of costs (subparagraph 23)), that its conduct was not directly an issue in review of the Commission's decision (subparagraphs 23), 27) and 28)) are not factors relevant to the process and the costs of proceedings in review of the Commission's decision. Subparagraph 24), suggesting that the purpose of the award of costs in this case is to alert others who may have complaints against Canada Post that they face the likelihood of costs being assessed against them, indicates a lack of understanding of the practice in judicial proceedings of assigning costs. Subparagraph 22), noting Mr. Connolly's recollection that counsel for the respondent did not request costs at the close of the hearing, with respect, is contrary to my hearing notes and ignores the request for costs set out in the respondent's written submissions, which request was not withdrawn at the hearing so far as I recall. Numerous other subparagraphs, i.e., numbers 26) and 30) to 36), essentially deal with certain aspects of the evidence before the Commission, and Mr.Connolly's perceptions that these matters were not properly considered by the Commission, or by this Court on judicial review. As my earlier reasons indicate I was not persuaded that the Commission's discretion in weighing evidence and finding facts was patently unreasonable or that there was any other ground upon which this Court should set aside the decision in question.

[4]                 I have outlined summarily the applicant's numerous submissions about an award of costs to the respondent in this case. With respect, I find that almost all of these are irrelevant to the issue of costs to be assessed.

[5]                 Among the factors to be considered, in accord with Rule 400, are the following:

(a)             the result of the proceeding;

(g)             the amount of work;

(h)             whether the public interest in having the proceeding litigated justifies a particular award;

(i)             any conduct of a party that tended to shorten or unnecessarily lengthen the duration of the proceeding;

(k)             whether any step in the proceeding was improper, vexatious or unnecessary; and

(o)             any other matter that is relevant.

[6]                 By Reasons and Order dated February 20, 2002, I dismissed the application by Mr. Connolly with costs to go to the respondent. In those Reasons, I indicated that ordinarily costs follow the outcome and that I saw no reason why costs should not be awarded to the respondent in this case.

[7]                 I am not free to change my decision to award costs to the respondent. That can only be varied by a successful appeal by Mr. Connolly concerning that decision.    I reiterate that in my opinion costs here should follow the event, and the usual practice of the Court, by an award to the successful party in the proceeding. Here that was the respondent, Canada Post.

[8]                 Pursuant to Rule 400(4), I fix costs to be awarded. I do so in the interests of restraining further expense to both parties that would arise if costs were subject to assessment by an assessing officer. I do so, recognizing the following factors: in my view, more work was required of the respondent because of the substantial record submitted by the applicant, much of which was not relevant to assessing the Commission's decision in light of the evidence and information before it; further, the two interlocutory applications heard by the Court, were in a legal sense unnecessary and they unnecessarily delayed hearing of the application for judicial review. While those factors, which may reflect adversely upon Mr. Connolly's preparations and materials, cannot be ignored for they created additional work and expense for the respondent, nevertheless, the Court recognizes that they did not arise from any intent of the applicant to undertake unnecessary work. Rather, in my view they resulted from his misunderstanding, as a lay litigant, about what was required for purposes of judicial review.

[9]                 Further, this Court recognizes that in the circumstances of this case, the public interest in having the matter dealt with was significant after the Commission's unanticipated delay in dealing with the complaint, more than four years. I expect that delay led indirectly in part to the substantial written record produced by Mr. Connolly, and to the difficulty he faced in pulling together a reasonably succinct submission in support of his claim for judicial review. So far as this delay by the Commission may have led indirectly to increased costs, in my opinion it is inappropriate that the applicant should be assessed in relation to the higher costs accruing to Canada Post in the course of this proceeding.

[10]            In light of these considerations, while acknowledging that the costs incurred by Canada Post would be significantly more than would be assessed under a normal order for costs on a party-and-party basis, I fix costs at less than the normal level, at $500.00, to be paid to the respondent's solicitor in trust, in accord with Rule 400(7).

    O R D E R

Following this Court's Order of February 20, 2002, the parties having failed to agree on a fixed amount of costs to be paid to the respondent, and after consideration of the applicant's written submissions;

IT IS ORDERED that costs in the amount fixed at $500.00 are awarded to the respondent, payable to the respondent's solicitor, in trust.

        (signed) W. Andrew MacKay

_______________________________

          JUDGE